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Wednesday, 16 March 2011

Open justice and access to documents: can the Patents Court lead the way?

A tangential consequence of the discussion of expert evidence in most recent PCC Page is the sparking off of some interesting and highly constructive thoughts from a patent litigator who reads this blog, as to how access to court materials including expert evidence might be improved. PatLit's correspondent writes:

"Writing in The Times in May 2007, Sir Hugh Laddie observed that "The Patents Court has been at the forefront of refining High Court litigation. Starting with Mr Justice Jacob (as he then was) for the past 15 years there has been an aggressive attempt to streamline procedure. Most things have been tried, including limiting (though not abolishing) documentary discovery."

With a deserved reputation for leading the way, the Patents Court is well placed to help the UK courts in areas where they are underperfoming -- as is the case in providing open justice.

Back in 2004, Mr Justice Park observed in Chan U Seek v Alvis [2004] EWHC 3092 that "Open justice has long been a fundamental principle of English law. There is a strong presumption that cases should be heard in public and that decisions should be given in public." He also noted that "A particular development in our system of civil trials, which has had to be considered in the context of open justice and of informed publicity for court proceedings, is the trend for a lot of material which the judge considers to be placed before him in written form, for him to read it all and take it all into account, but for much of it not to be read out aloud in court."

The importance of expert evidence was underlined in Cantor Fitzgerald [2000]RPC 95, where the court noted that it has "no points of reference other than those provided by the expert." The expert cross-examination is usually available from a transcript, which is a public document obtainable from the transcript writers. The evidence in chief -- including, therefore, all the points of evidence that were not challenged -- is only available in the form of his or her written report. As a result, a full understanding of the court's decision in a patent case is rarely possible unless one has access to the expert reports, skeleton arguments and so on - in fact, all the documents before the court.

Under the current system in England and Wales, it is open to anyone to make an application for a copy of the documents on the court file. But that is a costly step to take for a discretionary order and, facing a risk of costs orders, it is a step that would only be taken where there is a substantial commercial, rather than academic or forensic, reason for doing so.

It is not possible to obtain similar documents from, say, German courts, and if the UK system purported to maintain similar privacy in court proceedings, one could understand the reluctance to make papers available. But we do not. We aspire to offer the same open justice as is offered in the United States. However, we fall woefully short of the example set by the US court system.

The US courts have a well-established system for ensuring public access to court files: "Public Access to Court Electronic Records", known as PACER (www.pacer.gov). The self-financing system provides access to most filings in most courts in the US, and ensures that the courts there are not merely paying lip-service to the target of open justice but are actively promoting it.

PACER is not without critics. Quoted in the in February 2009, Carl Malamud, the leader of the effort and founder of a nonprofit group, Public.Resource.org commented: “"Pacer is just so awful. The system is 15 to 20 years out of date.” But we should not aim to high. As an initial target for the UK, catching up with the technology of the 1990s would at least be a start.

As every journey starts with a single step, perhaps the first stage should be to get Patents Court pleadings on the net, followed by skeleton arguments. This is a small volume of paper, usually submitted electronically, and they are (usually) masterful discussions of the law. This alone would make a superb resource on several fronts, including providing a shop window for counsel and the UK litigation system.

Does the Patents Court have power to authorise this? It seems the answer is: yes. The Civil Procedure Rules, CPR5.4C(2), provide that " A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person." CPR3.3(1) adds: "Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative." No application is needed for the Patents Court to give permission for a third party service provider to have access to documents which can then be placed on web, or to make them available itself in that way.

One can anticipate questions about copyright infringement. The exemption in section 45 of the Copyright, Designs and Patents Act 1988 seems entirely apt to answer those questions.

Obviously any new development requires some resourcing, even one as minimal as this. But cost is a poor excuse for doing nothing. It does not cost much to post a file to a blog -- as PatLit and the IPKat demonstrate. Charged appropriately, it could even cover its own costs. It is exactly the sort of project that an institute like IBIL might take on as a pilot scheme. With the arrival of an advocate for open justice like Sir Robin Jacob, fresh from the Patents Court and Court of Appeal, IBIL would in fact be the perfect vehicle for demonstrating a UK pilot scheme of open justice on the web.

Whether or not that happens, someone has to do it. It is ridiculous in 2011 still to be sending court clerks to flick through paper files and bespeak copies of documents. Ipad users don't even know what "bespeak" means".

2 comments:

Anonymous
said...

A convenient approach to this would be to require all documents to be served on the Patent Office (sorry IPO) who would then make them publicly available via the relevant patent file, and the existence of the litigation would be apparent from the file.

Of course the IPO then needs to properly introduce electronically accessible files as do the USPTO and EPO.

I would like access to all documents for professional/educational use and I agree that it is impossible to come to a personal conclusion on the correctness of a decision without access to such evidence. In a trial I attended as a member of the public, the evidence of the expert witnesses, which I heard, was not accurately reflected in the decision. As far as court precedents are concerned, you cannot ignore the facts of the case at hand, but we don't generall get to see those facts.

There is no legitimate reason not to publish all documents upon filing. Just ask the EPO for assistance if the technology is a little too complicated for the wig and quill brigade.